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IP and Internet Legislation Pending in Congress

There are a number of IP and Internet-related bills pending in Congress, only eleven of which have had any material action. These eleven address issues ranging from internet taxes; email privacy; ICANN transition; terrorist use of social media; access to science and technology research; protection of consumer reviews and net neutrality and broadband.

A summary of the eleven bills are below, followed by a summary of all pending IP and Internet-related bills.

Amends the Electronic Communications Privacy Act of 1986 to prohibit a provider of remote computing service or electronic communication service to the public from knowingly divulging to a governmental entity the contents of any communication that is in electronic storage or otherwise maintained by the provider, subject to exceptions.

Revises provisions under which the government may require a provider to disclose the contents of such communications. Eliminates the different requirements applicable under current law depending on whether such communications were: (1) stored for fewer than, or more than, 180 days by an electronic communication service; or (2) held by an electronic communication service as opposed to a remote computing service.

Requires the government to obtain a warrant from a court before requiring providers to disclose the content of such communications regardless of how long the communication has been held in electronic storage by an electronic communication service or whether the information is sought from an electronic communication service or a remote computing service

Requires a law enforcement agency, within 10 days after receiving the contents of a customer’s communication, or a governmental entity, within 3 days, to provide a customer whose communications were disclosed by the provider a copy of the warrant and a notice that such information was requested by, and supplied to, the government entity. Allows the government to request delays of such notifications.

Prohibits disclosure requirements that apply to providers from being construed to limit the government’s authority to use an administrative or civil discovery subpoena to require: (1) an originator or recipient of an electronic communication to disclose the contents of such communication, or (2) an entity that provides electronic communication services to its employees or agents to disclose the contents of an electronic communication to or from such employee or agent if the communication is on an electronic communications system owned or operated by the entity.

Allows the government to apply for an order directing a provider, for a specified period, to refrain from notifying any other person that the provider has been required to disclose communications or records.

Directs the Comptroller General to report to Congress regarding disclosures of customer communications and records under provisions: (1) as in effect before the enactment of this Act, and (2) as amended by this Act.

(Sec. 2) Amends the Communications Act of 1934 to replace various reporting requirements with a communications marketplace report that the Federal Communications Commission (FCC) is required to publish on its website and submit to Congress every two years assessing: (1) competition in the communications marketplace; (2) deployment of communications capabilities, including whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion; and (3) whether laws, regulations, or regulatory practices pose a barrier to competitive entry or expansion of existing providers of communications services.

Requires the report to describe the FCC’s actions in the marketplace and its agenda for the next two years.

Directs the FCC to: (1) compile a list of geographic areas that are not served by any provider of advanced telecommunications capability; and (2) consider market entry barriers for entrepreneurs and small businesses in accordance with national policy favoring diversity of media voices, competition, technological advancement, and promotion of the public interest, convenience, and necessity.

Requires the FCC’s competition assessments to include the aggregate average total amount paid by cable systems for retransmission consent.

(Sec. 3) Repeals or consolidates various reports of the FCC and the Corporation for Public Broadcasting, including reports on satellite competition, international broadband, video programming, cable industry prices, small business entry barriers, commercial mobile radio, services to minority and diverse audiences, waivers from requirements prohibiting FCC employees from being financially interested in companies subject to FCC regulation, and several other existing reports under such Act.

Amends the Telecommunications Act of 1996 to require the FCC to determine from the communications marketplace report every two years (currently, in an inquiry initiated each year) whether it must act immediately to accelerate deployment of advanced telecommunications capabilities, particularly in elementary and secondary schools, by removing barriers to infrastructure investment and promoting competition.

Domain Openness Through Continued Oversight Matters Act of 2015 or the DOTCOM Act of 2015

Prohibits the Assistant Secretary of Commerce for Communications and Information from permitting the National Telecommunications and Information Administration’s (NTIA’s) role in the performance of the Internet Assigned Numbers Authority (IANA) functions to cease until 30 legislative days after the Assistant Secretary submits to Congress a report that contains: (1) the proposal relating to the transition of the NTIA’s stewardship of the IANA functions that was developed in a process convened by the Internet Corporation for Assigned Names and Numbers (ICANN) at the request of the NTIA, and (2) the following required certifications by the Assistant Secretary.

Requires the Assistant Secretary to certify that: (1) such proposal supports and enhances the multistakeholder model of Internet governance, maintains the security, stability, and resiliency of the Internet domain name system, meets the needs of global customers and partners of the IANA services, maintains the openness of the Internet, and does not replace the role of the NTIA with a government-led or intergovernmental organization solution; and (2) the required changes to ICANN’s bylaws contained in the final report of ICANN’s Cross Community Working Group on Enhancing ICANN Accountability and the changes to ICANN’s bylaws required by ICANN’s IANA Stewardship Transition Coordination Group have been adopted.

Prohibits a state or local jurisdiction from imposing multiple or discriminatory taxes on the sale or use of a digital good or service delivered or transferred electronically to a customer. Excludes from the definition of “digital service” a service that is predominantly attributable to the direct, contemporaneous expenditure of live human effort, skill, or expertise, a telecommunications service, an ancillary service, an Internet access service, an audio or video programming service, or a hotel intermediary service.

Restricts taxation of a digital good or service to taxation by a state or local jurisdiction whose territorial limits encompass a customer tax address, as defined by this Act. Makes the seller of digital goods or services responsible for obtaining and maintaining such address. Provides for the taxation of digital goods and services transactions that are aggregated and not separately stated.

(Sec. 3) Nothing in this Act shall be construed to affect the FCC’s authority to: (1) condition receipt of universal service support by a provider of broadband Internet access service on the regulation of the rates charged by such provider for the supported service, or (2) enforce regulations relating to truth-in-billing requirements or paid prioritization.

(Sec. 4) Broadband Internet access service shall not be construed to include data roaming or interconnection for purposes of this Act.

(Sec. 2) This bill requires the President to transmit to Congress a report on U.S. strategy to combatterrorists’ and terrorist organizations’ useofsocialmedia.

The report must include:

an evaluation of the role socialmedia plays in radicalization in the United States and elsewhere;

an analysis of how terrorists and terrorist organizations are usingsocialmedia;

recommendations to improve the federal government’s efforts to disrupt and counter the useofsocialmedia by terrorists and terrorist organizations;

an analysis of how socialmedia is being used for counter-radicalization and counter-propaganda purposes, irrespective of whether such efforts are made by the federal government;

an assessment of the value to law enforcement ofterrorists’socialmedia posts; and

an overview of training available to law enforcement and intelligence personnel to combatterrorists’useofsocialmedia and recommendations for improving or expanding existing training opportunities.

(Sec. 3) The President must also transmit to Congress a comprehensive strategy to counter terrorists’ and terrorist organizations’ useofsocialmedia, as committed to in the President’s 2011 Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States.

SUMMARY AS OF:
3/16/2016–Passed House without amendment. (There are 2 other summaries)

Small Business Broadband Deployment Act

(Sec. 2) This bill exempts for five years any smallbusinessbroadband Internet access service provider with no more than 250,000 subscribers from the enhancements to the transparency rule of the Federal Communications Commission (FCC) under which any person engaged in the provision of broadband Internet access service must disclose publicly accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for:

Requires each federal agency with extramural research expenditures of over $100 million to develop a federal research public access policy that is consistent with, and that advances, the purposes of the agency and that follows common procedures for the collection and depositing of research papers.

Makes each federal research public access policy applicable to: (1) researchers employed by the federal agency whose works remain in the public domain, and (2) researchers funded by the agency. Specifies exclusions.

Requires each federal agency to submit an annual report on its federal research public access policy to specified congressional committees.

S.1551Latest Title: Domain Openness Through Continued Oversight Matters Act of 2015Sponsor: Sen Thune, John [SD] (introduced 6/11/2015) Cosponsors(5)Related Bills:H.R.805Latest Major Action: 6/25/2015 Senate committee/subcommittee actions. Status: Committee on Commerce, Science, and Transportation. Ordered to be reported with an amendment in the nature of a substitute favorably.

SUMMARY AS OF:
6/11/2015–Introduced.

Domain Openness Through Continued Oversight Matters Act of 2015 or the DOTCOM Act of 2015

Prohibits the Assistant Secretary of Commerce for Communications and Information from permitting the National Telecommunications and Information Administration’s (NTIA’s) role in the performance of the Internet Assigned Numbers Authority (IANA) functions to cease until 30 legislative days after the Assistant Secretary submits to Congress a report that contains: (1) the proposal relating to the transition of the NTIA’s stewardship of the IANA functions that was developed in a process convened by the Internet Corporation for Assigned Names and Numbers (ICANN) at the request of the NTIA, and (2) the following required certifications by the Assistant Secretary.

Requires the Assistant Secretary to certify that: (1) such proposal supports and enhances the multistakeholder model of Internet governance, maintains the security, stability, and resiliency of the Internet domain name system, meets the needs of global customers and partners of the IANA services, maintains the openness of the Internet, and does not replace the role of the NTIA with a government-led or intergovernmental organization solution; and (2) the required changes to ICANN’s bylaws contained in the final report of ICANN’s Cross Community Working Group on Enhancing ICANN Accountability and the changes to ICANN’s bylaws required by ICANN’s IANA Stewardship Transition Coordination Group have been implemented.

(Sec. 2) This bill makes a provision of a form contract void from the inception if it: (1) prohibits or restricts an individual who is a party to such a contract from engaging in written, oral, or pictorial reviews, or other similar performance assessments or analyses of, including by electronic means, the goods, services, or conduct of a person that is also a party to the contract; (2) imposes penalties or fees against individuals who engage in such communications; or (3) transfers or requires the individual to transfer intellectual property rights in review or feedback content (with the exception of a nonexclusive license to use the content) in any otherwise lawful communications about such person or the goods or services provided by such person.

A “form contract” is a contract with standardized terms: (1) used by a person in the course of selling or leasing the person’s goods or services, and (2) imposed on an individual without a meaningful opportunity to negotiate the standardized terms. The definition excludes an employer-employee or independent contractor contract.

The standards under which provisions of a form contract are considered void under this Act shall not be construed to affect:

legal duties of confidentiality;

civil actions for defamation, libel, or slander; or

a party’s right to establish terms and conditions for the creation of photographs or video of such party’s property when those photographs or video are created by an employee or independent contractor of a commercial entity and are solely intended to be used for commercial purposes by that entity.

Such standards also shall not be construed to affect any party’s right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or controlled by such party content that: (1) contains the personal information or likeness of another person or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic; (2) is unrelated to the goods or services offered by or available at such party’s website; or (3) is clearly false or misleading.

A provision shall not be considered void under this Act to the extent that it prohibits disclosure or submission of, or reserves the right of a person or business that hosts online consumer reviews or comments to remove, certain: (1) trade secrets or commercial or financial information; (2) personnel and medical files; (3) law enforcement records; (4) content that is unlawful or that a party has a right to remove or refuse to display; or (5) computer viruses or other potentially damaging computer code, processes, applications, or files.

A person is prohibited from offering form contracts containing a provision that is considered void under this Act.

Enforcement authority is provided to the Federal Trade Commission (FTC) and states.

The FTC must provide businesses with nonbinding best practices for compliance.